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MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - credibility - whether the applicant was able to return to country of origin safely after being away for a long time - whether there is jurisdictional error - no reviewable error found.

NAQF v Minister for Immigration & Anor [2002] FMCA 338 (11 December 2002)

NAQF v Minister for Immigration & Anor [2002] FMCA 338 (11 December 2002)
Last Updated: 4 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQF v MINISTER FOR IMMIGRATION & ANOR
[2002] FMCA 338



MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - credibility - whether the applicant was able to return to country of origin safely after being away for a long time - whether there is jurisdictional error - no reviewable error found.



Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth) s.474

R v Hickman; Ex Parte Fox v Clinton (1945) 70 CLR 598

NAAV v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 228

Applicant:
NAQF



First Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



Second Respondent


REFUGEE REVIEW TRIBUNAL



File No:


SZ 894 of 2002



Delivered on:


11 December 2002



Delivered at:


Sydney



Hearing date:


11 December 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


No appearance



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Spark Helmore Solicitors


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 874 of 2002

NAQF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




First Respondent

REFUGEE REVIEW TRIBUNAL




Second Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter has not appeared at 2.40 p.m. in relation to a hearing that was scheduled for 2.15 p.m. His name was called three times outside the Court without his attendance.

2. The applicant is a citizen of India who arrived in Australia on

2 February 2001. On 16 March 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration. On 18 April 2001 a delegate of the Minister refused to grant the protection visa and on 3 May 2001 he applied for a review of that decision from the Refugee Review Tribunal. The Tribunal carried out its review and interviewed the applicant personally. The applicant was represented by an adviser. On 27 June 2002 the Tribunal decided to affirm the decision not to grant a protection visa and that decision was handed down on 23 July. The applicant seeks from this Court review of that decision.

3. The basis of the applicant's claim for a well-founded fear of persecution for convention reasons arises out of alleged inter-caste rivalry in his home state of Tamil Nadu. He claimed, amongst other things, that his father had been killed in this type of violence in or about December 1995. He made further claims that he had personally been required to leave his home village and moved to the town now known as Chennai, but more familiarly known as Madras. Whilst in that city he was further subjected to violence by members of the Aathi Thravidar caste.

4. Upon the applicant's evidence to the Tribunal he had not returned to his home State since 1992 except for a short time to try and locate his mother, who he claimed had gone missing. After 1996 he had spent approximately three years in Thailand. The time he had spent between 1992 and 1996 outside of his village was spent in Madras.

5. The Tribunal came to two important conclusions. The first was that it did not accept much of the evidence of the applicant. At [93CB] the Tribunal says:

"The applicant did not impress me as a reliable witness."

And the Tribunal goes on from [CB93 to approximately 96] to set out those areas of the applicant's evidence which concern it. The second conclusion reached by the Tribunal appears to be that the applicant could return in safety to Madras where there was much less danger of caste violence occurring and that in respect to the applicant this would be magnified by the fact that he had not spent much time in India since 1996.

6. The applicant's grounds for seeking review are that, one, the Tribunal erred in law, amounting t jurisdictional error, in finding that the applicant does not have any profile that places him at risk outside his home town or outside Tamil Nadu. Two, the Tribunal exceeded its jurisdiction in making its decision to affirm the first respondent's decision. Three, constructively failed to exercise its jurisdiction in arriving at its decision. These are standard forms of application which are familiar to all who practice in this jurisdiction. They do not address the exceptions to the Hickman principle set out by Dixon J in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598-615. They appear to be concentrating on the Court's powers under s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). Indeed the affidavit in support makes specific mention of that section.

7. It is now well established from the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 228 that these grounds have been severely limited by the imposition of s.474 of the Migration Act 1958 (Cth) ("Migration Act"). The available grounds which might have relevance to this case would only be that the Tribunal acted with a lack of bona fides in coming to its conclusion. This is not promoted by the applicant and it is difficult to see from the court book that such a case has any possibility of being made out.

8. I would equally add that I do not see any evidence in the court book of any error which might attract the Court's jurisdiction under s.39B of the Judiciary Act even if the Court had the full powers granted by that subsection, which of course it does not at the present time. I cannot see that the Tribunal has erred by asking itself the wrong question or considering irrelevant material or not considering any relevant material. In these circumstances, subject to anything I might have heard from the applicant, I would have been inclined to dismiss the application.

9. However, the applicant has not appeared and the most appropriate order to make is that the application be dismissed pursuant to order 32, rule 2 of the Federal Court rules. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21, Rule 21.02(2)(a) below the Federal Magistrates Court rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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